# Subhash Chandra Maurya v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 407
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-20
- **Case number:** Writ A No. 8117 of 2021
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-chandra-maurya-v-state-of-u-p-ors-46340
- **Pages:** 5

## Headnote

Law
-
Termination
-
Appointment on the strength of BTC
course
completed
under
Physically
Handicapped
Quota
-
Allegation
of
obtaining
forged
document
of
P.H.
certificate - After 14 years, the Medical
Board declared that petitioner is having
merely 6% hearing disability - P.H.
certificate,
which
is
the
basis
of
appointment, has not been declared to be
a forged or manufactured document - No
regular
enquiry
-
Termination
after
issuing show cause notice - Validity
challenged
-
Held,
services
of
the
petitioner could not have been terminated
outright on mere show cause notice -
Medical report, the report, per se, would
not be sufficient to terminate the service
of
the
petitioners
outright,
without
returning a further finding that the
disability
of
the
petitioners
was
irreversible
and
not
liable
of
improvement/cured. (Para 19 and 22)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

10 All. Subhash Chandra Maurya Vs. State of U.P. & Ors.
407

83. Facts in the present case, however,
are distinct. The minimum and maximum age
of recruitment is 21 and 28 years. Last
recruitment was held in the year 2016. It
cannot be said that those who loose out due to
non-holding of annual recruitment would
have no chance of appearing for recruitment,
unlike the Constables. The relaxation sought
in this case is four years if the basis of
petitioners' claim is accepted unlike one year
for
the
Constables.
The
process
of
recruitment, already stands delayed by
several years and would be further delayed in
case prayer made by petitioners is accepted.
Thus the very object of Supreme Court's
order dated 24.4.2017 of early appointment
shall stand frustrated.

84. In view of the facts and reasons
noted hereinabove this Court comes to the
inescapable conclusion that despite assurance
given by State of U.P. before Supreme Court
no ground exists to accept petitioners' claim
for grant of age relaxation on the ground of
parity with Constables for the purpose of
recruitment.

85. As a result all the writ petitions
fail and are therefore liable to be dismissed.

86. They are accordingly dismissed.

87. Costs made easy.
----------
(2021)10ILR A407
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2021

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ A No. 8117 of 2021
With other cases

Subhash Chandra Maurya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Suresh Chandra Shukla, Sri Radha Kant
Ojha (Senior Adv.)

Counsel for the Respondents:
C.S.C., Sri Shashi Kant Verma

A.
Service
Law
-
Termination
-
Appointment on the strength of BTC
course
completed
under
Physically
Handicapped
Quota
-
Allegation
of
obtaining
forged
document
of
P.H.
certificate - After 14 years, the Medical
Board declared that petitioner is having
merely 6% hearing disability - P.H.
certificate,
which
is
the
basis
of
appointment, has not been declared to be
a forged or manufactured document - No
regular
enquiry
-
Termination
after
issuing show cause notice - Validity
challenged
-
Held,
services
of
the
petitioner could not have been terminated
outright on mere show cause notice -
Medical report, the report, per se, would
not be sufficient to terminate the service
of
the
petitioners
outright,
without
returning a further finding that the
disability
of
the
petitioners
was
irreversible
and
not
liable
of
improvement/cured. (Para 19 and 22)
Writ petition allowed. (E-1)
Cases relied on :-
1. Chairman & Managing Director, FCI & ors. Vs
Jagdish Balaram Bahira & ors.; AIR 2017 SC
3271

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard learned counsels appearing
for the petitioners in the batch of connected
writ petitions, learned counsels appearing
for the respondents and learned standing
408 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the State-respondents and
perused the material placed on record.

2. Learned counsels appearing for the
petitioners in the instant writ petition and
the other batch of writ petitions submit that
the facts, inter se, parties are similar and
can be decided by a common judgment.

3. For the sake of convenience, the
facts stated in the Writ Petition No. 8117 of
2021 is being referred to for deciding the
writ petitions.

4. Petitioner was admitted to Basic
Training
Course
under
Physically
Handicapped Quota (in short 'P.H.') on the
strength
of
P.H.
certificate
dated
12.09.2006, issued by the office of the
Chief
Medical
Officer,
Sonbhadra,
wherein, it is noted that petitioner is having
60% hearing problem (deafness). The
petitioner came to be appointed as
Assistant Teacher in Primary School, run
and managed by second respondent-Basic
Shiksha
Parishad,
Uttar
Pradesh
on
30.06.2011, under the other backward class
category (OBC). Thereafter, on assessing
the work, performance and conduct of the
petitioner, he came to be promoted on the
post of Headmaster on 15.05.2015. In the
meantime, the State Government vide
Government Order dated 20.07.2018, on
having received complaints with regard to
forged
documents,
pertaining
to
handicapped
certificate,
social
status
certificates upon which direct appointments
came to be made, accordingly, directed
verification of all such certificates with
regard to their authenticity/genuineness. As
per the Government Order, a three member
committee, under the Chairmanship of the
Additional
District
Magistrate,
was
required to inquire and examine the
certificates, other than the seven districts,
noted therein, namely, Agra, Aligarh,
Firozabad, Hathras, Moradabad, Fatehpur
and Hardoi.

5. Para- 6 of the Government Order
relevant to the facts of the instant case
reads as under:-

fnO;kaxtu vuqlwfpr tkfr] tutkfr
rFkk vU; vkjf{kr oxZ ds QthZ izek.k i= izLrqr
dj vkjf{kr Js.kh dk ykHk ysus ds izdj.k Hkh
lkeus vk;s gSA vr% bu lHkh izek.k i=ksa dk iqu%
ijh{k.k djkdj lR;kiu djkuk gksxkA1

6.

Pursuant
thereof,
all
such
candidates who had obtained appointment
under the P.H. category were directed to
appear before a Medical Board at Banaras
Hindu University, Varansai (in short
'B.H.U.').

7. Petitioners herein were appointed
under P.H. category, they appeared before
the Medical Board on 29.10.2020.

8.

The
Medical
Board,
on
examination, declared that petitioner is
having 06% hearing disability. On the
strength of the report, a show cause notice
dated 23.03.2021, was issued by the third
respondent-District
Basic
Education
Officer, Sonbhadra, to the petitioner.
Petitioner appeared and submitted his
reply/objections stating, inter alia, that the
P.H. certificate was issued to the petitioner
in 2006 by the Government Medical
Officer. During fourteen years, thereafter,
the impairment of the petitioner improved
for the better as petitioner was regularly
taking treatment under the supervision of
specialized doctors. It was further stated
that it is not the case of the respondent that
he had obtained appointment on the
strength of forged and manufactured
document, hence, services of the petitioner
10 All. Subhash Chandra Maurya Vs. State of U.P. & Ors.
409
could not have been terminated without
following the procedure mandated under
the
Uttar
Pradesh
Basic
Education
(Teachers) Service Rules, 1981, read with
Uttar Pradesh Basic Education Staff Rules,
1973 (hereinafter referred to as "Rules,
1973").

9. In rebuttal, learned counsels
appearing for the respondents submit that
the impugned order has been passed by the
appointing authority on the strength of the
report of the Medical Board communicated
by the Chief Medical Officer, vide
communication dated 08.03.2021. The
name of the petitioner finds place at serial
no. 3. It is further submitted that there was
no occasion for conducting disciplinary
proceedings since the impairment of the
petitioner was much lower (06%) and in
some cases (0%) than that mandated to
declare the petitioners handicapped i.e.
40%. It is urged that petitioners have
obtained appointment by misrepresentation.
The impugned order is lawful and liable to
be upheld.

10. Rival submissions fall for
consideration.

11. The short question that arises for
consideration
is
as
to
whether
the
petitioners could have been terminated on a
show cause notice, the impugned order
resting upon a medical report, without
taking recourse under the Rules, 1973.

12. The facts, inter se, parties are not
in dispute. The petitioner came to be
appointed in 2006 as Assistant Teacher
under the handicapped quota on the
strength of a P.H. certificate dated
12.09.2006. Petitioner was assessed hearing
impairment at 60%. Thereafter, petitioner
earned promotion on 15.05.2015. On
complaints being received by the State
Government
alleging
that
several
candidates
obtained
appointments
on
forged
and
manufactured
documents.
Accordingly, vide Government Order dated
20.06.2018, State Government directed the
District
Magistrate
to
verify
the
authenticity of the documents insofar as it
relates to the handicapped/social status
certificate, in respect of candidates of all
districts of the State, barring, seven districts
noted in the Government Order. On
receiving the report dated 18.03.2021,
communicated by the Chief Medical
Officer, the third respondent- District Basic
Education Officer, Sonbhadra, upon a show
cause notice, the services of the petitioner
came to be terminated by the impugned
order dated 23.06.2021. The order is under
challenge.

13. I have perused the Government
Order and other material brought on record
with the assistance of learned counsel for
the petitioners.

14. The Government Order specified
that the committee would inquire and
examine the genuineness of the certificates
issued by the competent authority of all
candidates having obtained appointment as
Assistant Teachers on the strength of
physical
handicapped/social
status
certificates. The committee instead of
inquiring into the genuineness/authenticity
of the certificates, directed all such
candidates, who claim to be handicapped,
to appear before the Medical Board for
medical examination to ascertain their
handicap status.

15. On the medical report, services of
the petitioner came to be terminated after
issuing a show cause notice dated 22 March
2021. It is no where noted in the impugned
410 INDIAN LAW REPORTS ALLAHABAD SERIES
order that the P.H. certificate, issued by the
respective Chief Medical Officers, which,
inter alia, was the basis for appointment, is a
forged or manufactured document. In other
words the appointment of the petitioner
cannot be said to be void ab initio or non est
having obtained on a forged and non-existent
document. The genuineness of the document
on which the appointment of the petitioner
rests is not under doubt nor have the Chief
Medical Officer of any district under
scrutiny, certified that the P.H. certificate was
not issued from their office. The impugned
order is founded on an acquired evidence i.e.
a fresh medical report without returning a
finding of fact that the earlier P.H. certificate
issued by the Medical Officer is a forged
and/or manufactured document. It is also not
the case of the respondents that the
impairment of the petitioners at the time of
appointment is permanent or irreversible in
the backdrop of the Medial Report. The
finding cannot have been inferred but would
rest upon evidence.

16. The question of fact could have been
established in a regular departmental enquiry
contemplated under the Rules, 1973. Sub-rule
(3) of Rule 5 provides that the procedure
prescribed under the U.P. Government Servant
(Discipline and Appeal) Rules, 19992, would
have to be followed. Rules, 1999, mandates a
prescribed procedure for imposing major
penalty of termination from service.

17. The Rules, 1999 mandates: (i)
framing of charge; (ii) opportunity to the
delinquent employee to deny his guilt and
establish his innocence; (iii) an opportunity to
defend himself by cross examination of
witnesses produced against him; (iv) an
opportunity to make representation to the
proposed punishment.

18.

Admittedly,
the
procedure
prescribed thereunder was not followed.
The respondents proceeded to terminate the
services of the petitioner on an assumption
that the P.H. certificate, which is the basis
of the employment of the petitioners, is a
forged and manufactured document, merely
for the reason that the subsequent Medical
Board has assessed their disability less than
that
mandated
to
declare
a
person
physically handicapped.

19. Having due regard to the facts and
circumstances of the case, services of the
petitioner could not have been terminated
outright on mere show cause notice.
Admittedly, the P.H. certificate, which is
the basis of appointment, has not been
declared to be a forged or manufactured
document by the competent authority
issuing the certificate. Had the P.H.
certificate
been
a
forged
and/or
manufactured document i.e. non existent
document, the procedure adopted by the
respondents could have been justified.

20. Three Judge Bench of the
Supreme
Court
in
Chairman
and
Managing Director, FCI and others
Versus Jagdish Balaram Bahira and
others3, upon revisiting the law where the
incumbent
obtained
benefit
of
admissions/appointment based on false
social status certificate held that "where a
benefit is secured by an individual - such as
an appointment to a post or admission to an
educational institution - on the basis that
the candidate belongs to a reserved
category for which the benefit is reserved,
the invalidation of the caste or tribe claim
upon verification would result in the
appointment or, as the case may be, the
admission being rendered void or non est."
10 All. Uttam Chand Rawat Vs. State of U.P. & Ors.
411

21. In that event, the employer would
not
be
required
to
initiate
regular
departmental proceedings under the Rules
for the reason that the verification of the
certificate by the competent authority
would bind the disciplinary authority. In
such a case, the delinquent employee can
be removed from service upon a show
cause notice. The disciplinary authority
would have no occasion to return a finding
in a proceedings to a charge. The very
foundation on which the service of the
delinquent employee rests upon being
demolished, the consequence would be
automatic removal from service.

22. In the instant case, the principle is
not applicable. The impugned order rests
upon a sole evidence i.e. medical report,
the report, per se, would not be sufficient to
terminate the service of the petitioners
outright, without returning a further finding
that the disability of the petitioners was
irreversible
and
not
liable
of
improvement/cured. Such a finding could
have been returned in a regular disciplinary
proceedings conducted under the rules, on a
specific charge and either side leading
evidence.
Admittedly,
the
procedure
mandated under the 1973 Rules, read with,
Rules, 1999, was not followed before
imposing major penalty that would in the
given facts vitiate the impugned order
terminating the services of the petitioner.

23. In view thereof, the writ petition
is allowed. The impugned order dated 23
June 2021, passed by third respondentDistrict
Basic
Education
Officer,
Sonbhadra, is set aside and quashed.
Petitioner of the leading petition and
connected petitions shall be reinstated on
their respective posts. Petitioners shall be
entitled to arrears of salary and salary on
month to month thereafter.

24. It is clarified that the disposal of
the writ petitions would not preclude the
respondents
from
verifying
the
genuineness/authenticity
of
the
P.H.
certificates as to whether it is a forged or
manufactured document.

25. No cost.
----------
(2021)10ILR A411
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE PRAKASH PADIA, J.
THE HON'BLE SANJAY KUMAR SINGH, J.

Writ A No. 9814 of 2020

Uttam Chand Rawat ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shyam Shanker Pandey, Sri Krishna
Mohan Singh, Sri Avneesh Tripathi

Counsel for the Respondents:
C.S.C., A.S.G.I., Sri Dhananjay Awasthi,Sri
Rahul Sahai

A. Constitution of India - Article 12 -
State or its authority - Definition - Twin
test
-
The
writ
petition
would
be
maintainable against an authority or
person only when it is discharging public
duty/public
function
and
the
matter
pertains to public law - It would be
maintainable against the authority or the
person which may be a private body, if it
discharges public function/public duty,
which is otherwise primary function of the
State - Apex Court verdict laid down in KK
Saksena's case followed. (Para 14, 17 and
20)